Cities; home rule; blight violations; expand to include right-of-way signage violations

HB-4868, As Passed Senate, March 13, 2008

SUBSTITUTE FOR

HOUSE BILL NO. 4868

A bill to amend 1909 PA 279, entitled

"The home rule city act,"

by amending sections 4q and 4r (MCL 117.4q and 117.4r), section 4q

as added by 2003 PA 316 and section 4r as added by 2003 PA 317.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 4q. (1) A city that has a population of 7,500 or more and

is located in any county, or a city that has a population of 3,300

or more and is located in a county that has a population of

2,000,000 or more, may establish an administrative hearings bureau

to adjudicate and impose sanctions for violations of the charter or

ordinances designated in the charter or ordinance as a blight

violation. The bureau may accept admissions of responsibility for

blight violations. Pursuant to a schedule of civil fines and costs,

the bureau may collect civil fines and costs for blight violations.

House Bill No. 4868 as amended March 12, 2008

(2) The expense of the operation of an administrative hearings

bureau shall be borne by the city establishing the bureau.

(3) An administrative hearings bureau shall not have

jurisdiction over criminal offenses, traffic civil infractions,

municipal civil infractions, or state civil infractions. The bureau

and its hearing officers shall not have the authority to impose a

penalty of incarceration and may not impose a civil fine in excess

of $10,000.00. <<This section does not authorize a proceeding against a

foreclosing governmental unit as defined under section 78 of the general property tax act, 1893 PA 206, MCL 211.78, or an authority created under the land bank fast track act, 2003 PA 258, MCL 124.751 to 124.774. THE CITY MAY WAIVE A FINE FOR A BLIGHT VIOLATION AT AN OWNER-OCCUPIED DWELLING FOR A FIRST TIME OFFENDER OF A BLIGHT ORDINANCE, IF THE OFFENDER HAS CORRECTED THE CIRCUMSTANCES FOR THE VIOLATION.>>

(4) A city that establishes an administrative hearings bureau

under this section shall establish by ordinance the jurisdiction of

the bureau for adjudicating alleged blight violations, making

determinations of responsibility, and imposing sanctions upon those

found responsible for a violation. The city may designate only a

violation of any of the following types of ordinances as a blight

violation:

(a) Zoning.

(b) Building or property maintenance.

(d) Disease and sanitation.

(e) Noxious weeds.

(f) Vehicle abandonment, inoperative vehicles, vehicle

impoundment, and municipal vehicle licensing.

(g) Right-of-way signage. For purposes of this subdivision,

right-of-way signage violation means the placement of signage in a

right-of-way without a proper permit from the city.

(h) An ordinance that is substantially the same as sections

138 to 142 of the housing law of Michigan, 1917 PA 167, MCL 125.538

to 125.542.

(5) To initiate a proceeding for a blight violation, the city

shall issue and serve upon an alleged violator a written violation

notice on which an authorized local official records the occurrence

or existence of 1 or more blight violations by the person cited and

which directs the named person to pay a civil fine for the

violation or appear at the administrative hearings bureau as

provided in this section. A violation notice to appear at an

administrative hearings bureau shall be treated as made under oath

if the violation alleged in the notice occurred in the presence of

the authorized local official signing the violation notice and if

the notice contains the following statement immediately above the

date and signature of the official: "I declare under the penalties

of perjury that the statements above are true to the best of my

information, knowledge, and belief.". An authorized local official

may issue a violation notice to appear if, based upon

investigation, the official has reasonable cause to believe that

the person is responsible for a blight violation and if the city

attorney or an assistant city attorney approves in writing the

issuance of the violation notice.

(6) If a city has a rental inspection program with which a

landlord must register in order to rent premises for residential

purposes and if a landlord of premises rented in the city for

residential purposes is registered with the city's rental

inspection program, the city shall not issue a blight violation

notice during an inspection of the premises unless either of the

following occurs:

(a) The landlord is given a written correction notice of the

violation and a reasonable opportunity to correct the circumstances

before a reinspection of the premises or a date specified in the

notice.

(b) The violation is a direct result of the landlord's action

or inaction and creates an emergency that presents an immediate

risk of harm to people or damage to property including, but not

limited to, a flooded basement or premises without heat.

(7) A city that does not have a rental inspection program, or

does not require a landlord to register as part of a rental

inspection program, shall not issue a blight violation notice to a

landlord of premises rented in the city for residential purposes

during an inspection of the premises unless either of the following

occurs:

(a) The landlord is given a written correction notice of the

violation and a reasonable opportunity to correct the circumstances

before a reinspection of the premises or a date specified in the

notice.

(b) The violation is a direct result of the landlord's action

or inaction and creates an emergency that presents an immediate

risk of harm to people or damage to property, including, but not

limited to, a flooded basement or premises without heat.

(8) The person named in the violation notice shall appear on

or before the time specified in the violation notice and may

respond to the allegations in the notice, as follows:

(a) If the alleged violator wishes to admit responsibility for

the blight violation, the person may do so by appearing in person,

by representation, or by mail. If appearance is made by

representation or mail, the administrative hearings bureau may

accept the admission as though the person personally appeared. Upon

acceptance of the admission, a hearing officer may order any of the

sanctions permitted under this section.

(b) If the alleged violator wishes to deny responsibility for

the blight violation, or admit responsibility with an explanation,

the person may do so by appearing in person on the date scheduled

for the administrative hearing for the purpose of adjudicating the

alleged violation.

order of default may be entered.

(9) If an admission of responsibility is not made and the

civil fine and costs, if any, prescribed by charter or ordinance

for the violation are not paid at the administrative hearings

bureau, and the alleged violator fails to appear at a hearing

scheduled in accordance with this section, a final decision and

order of responsibility in the amount of the prescribed civil fine

and costs may be issued by the administrative hearings bureau.

(10) The city establishing an administrative hearings bureau

shall establish rules and procedures for an alleged violator to set

aside the entry of a decision and order of default.

(11) The ordinance establishing the bureau shall provide for

adjudicatory hearings by hearing officers. Each hearing officer

shall be an attorney licensed to practice law in this state for at

least 5 years. Hearing officers shall be appointed in a manner

consistent with the charter of the city for the appointment of

other municipal officers or employees and shall only be removed for

reasonable cause. Before conducting administrative adjudication

proceedings, administrative hearing officers shall successfully

complete a formal training program which includes all of the

following:

(a) Instruction on the rules of procedure of the

administrative hearings that they will conduct.

(b) Orientation to each subject area of the ordinance

violations that they will adjudicate.

(d) Participation in hypothetical cases, including ruling on

evidence and issuing final orders.

(e) The importance of impartiality in the conduct of the

administrative hearing and adjudication of the violation.

(f) Instructions on the preparation of a record that is

adequate for judicial review.

(12) The authority and duties of a hearing officer shall

include all of the following:

(a) Hearing testimony and accepting evidence that is relevant

to the existence of the blight violation.

(b) Issuing subpoenas directing witnesses to appear and give

relevant testimony at the hearing, upon request of a party or a

party's attorney.

and all exhibits and evidence introduced at the hearing.

(d) Issuing a determination, based upon the evidence presented

at the hearing, whether a blight violation exists. The

determination shall be in writing and shall include written

findings of fact, a decision, and an order. The city shall have the

burden of establishing the responsibility of the alleged violator

by a preponderance of the evidence. Unless the burden is met, the

matter shall be dismissed. A decision and an order shall not be

made except upon consideration of the record as a whole or a

portion of the record as may be cited by any party to the

proceeding and as supported by and in accordance with the

competent, material, and substantial evidence. A decision and order

finding the alleged violator responsible for the violation shall

include the civil fine, if any, or any action with which the

violator must comply, or both.

(e) Imposing reasonable and proportionate sanctions consistent

with applicable ordinance provisions and assessing costs upon a

finding that the alleged violator is responsible for the alleged

violation. The maximum monetary civil fine allowed under this

section excludes costs of enforcement or costs imposed to secure

compliance with the city's ordinances and is not applicable to

enforce the collection of any tax imposed and collected by the

city.

(13) In addition to fines and costs imposed under subsection

(12), the hearing officer shall impose a justice system assessment

of $10.00 for each blight violation determination. Upon payment of

the assessment, the city shall transmit the assessment collected to

the state treasury to be deposited into the justice system fund

created in section 181 of the revised judicature act of 1961, 1961

PA 236, MCL 600.181.

(14) A party shall be provided with the opportunity for a

hearing during which they may be represented by counsel, present

witnesses, and cross-examine witnesses. A party may request the

hearing officer to issue subpoenas to direct the attendance and

testimony of relevant witnesses and the production of relevant

documents. Hearings shall be scheduled with reasonable promptness,

except that for hearings scheduled in all nonemergency situations

the alleged violator if he or she requests shall have at least 14

days after service of process to prepare for the hearing. For

purposes of this subsection, "nonemergency situation" means any

situation that does not reasonably constitute a threat to the

public interest, safety, or welfare. If service is provided by

first-class mail, the 14-day period begins to run on the day that

the notice is deposited in the mail.

(15) In an administrative hearing under this section, the

rules of evidence as applied in a nonjury civil case in circuit

court shall be followed as far as practicable, but the hearing

officer may admit and give probative effect to evidence of a type

commonly relied upon by reasonably prudent persons in the conduct

of their affairs. Irrelevant, immaterial, or unduly repetitious

evidence may be excluded. Effect shall be given to the rules of

privilege recognized by law. Objections to offers of evidence may

be made and shall be noted in the record. Subject to these

requirements, the hearing officer, for the purpose of expediting

hearings and when the interests of the parties will not be

substantially prejudiced thereby, may provide in an administrative

hearing or by rule for submission of all or part of the evidence in

written form.

(16) Any final decision by a hearing officer that a blight

violation does or does not exist constitutes a final decision and

order for purposes of judicial review and may be enforced in the

same manner as a judgment entered by a court of competent

jurisdiction.

(17) A party may file an appeal within 28 days after entry of

the decision and order by the hearing officer. An appeal of a final

decision and order of an administrative hearing officer is to the

circuit court.

(18) An alleged violator who appeals a final decision and

order to circuit court shall post with the administrative hearings

bureau, at the time the appeal is taken, a bond equal to the fine

and costs imposed. A party who has paid the fine and costs is not

required to post a bond. If a party who has posted a bond fails to

comply with the requirements of supreme court rules for an appeal

to the circuit court, the appeal may be considered abandoned, and

the bureau may dismiss the appeal on 7 days' notice to the parties.

The administrative hearings bureau must promptly notify the circuit

court of a dismissal, and the circuit court shall dismiss the claim

of appeal. If the appeal is dismissed or the decision and order are

affirmed, the administrative hearings bureau may apply the bond to

the fine and costs. An appeal by the city must be asserted by the

city's attorney and a bond is not required.

(19) An appeal to circuit court shall be a review by the court

of the certified record provided by the administrative hearings

bureau. Pending appeal, and subject to the bond requirement under

subsection (18), the hearing officer may stay the order and any

sanctions or costs imposed. Once an appeal is filed, and subject to

the bond requirement under subsection (18), the court may stay the

order and any sanctions or costs imposed. The court, as

appropriate, may affirm, reverse, or modify the decision or order,

or remand the matter for further proceedings. The court shall hold

unlawful and set aside a decision or order of the hearing officer

if substantial rights of an alleged violator have been prejudiced

because the decision or order is any of the following:

(a) In violation of the constitution or a statute, charter, or

ordinance.

(b) In excess of the authority or jurisdiction of the agency

as conferred by statute, charter, or ordinance.

prejudice to a party.

(d) Not supported by competent, material, and substantial

evidence on the whole record.

(e) Arbitrary, capricious, or clearly an abuse or unwarranted

exercise of discretion.

(f) Affected by other substantial and material error of law.

Sec. 4r. (1) If a defendant does not pay a civil fine or costs

or an installment payment ordered by a hearing officer under

section 4q within 30 days after the date on which payment is due

for a blight violation involving the use or occupation of land or a

building or other structure, the city may obtain a lien against the

land, building, or structure involved in the violation by recording

a copy of the final decision and order requiring payment of the

fines and costs with the register of deeds for the county in which

the land, building, or structure is located. The order shall not be

recorded unless a legal description of the property is incorporated

in or attached to the order. The lien is effective immediately upon

recording of the order with the register of deeds.

(2) The order recorded under subsection (1) with the register

of deeds shall constitute notice of the pendency of the lien. In

addition, a written notice of the lien shall be sent by the city by

first-class mail to the owner of record of the land, building, or

structure at the owner's last known address.

(3) The lien may be enforced and discharged by the city in the

manner prescribed by its charter, by the general property tax act,

1893 PA 206, MCL 211.1 to ~~211.157~~ 211.155, or by an ordinance duly

passed by the governing body of the city. However, property is not

subject to forfeiture, foreclosure, and sale under sections 78 to

79a of the general property tax act, 1893 PA 206, MCL 211.78 to

211.79a, for nonpayment of a civil fine or costs or an installment

ordered under section 4q unless the property is also subject to

forfeiture, foreclosure, and sale under sections 78 to 79a of the

general property tax act, 1893 PA 206, MCL 211.78 to 211.79a, for

delinquent property taxes.

(4) A lien created under this section has priority over any

other lien unless 1 or more of the following apply:

(a) The other lien is a lien for taxes or special assessments.

(b) The other lien is created before May 1, 1994.

(d) The other lien is recorded before the lien under this

section is recorded.

(5) The city may institute an action in ~~a court of competent~~

~~jurisdiction~~ circuit court for the collection of the judgment

imposed by an order under section 4r 4q for a blight violation.

However, an attempt by the city to collect the judgment by any

process does not invalidate or waive the lien upon the land,

building, or structure.

(6) A lien provided for by this section shall not continue for

a period longer than 10 years after a copy of the order imposing a

fine or costs, or both, is recorded, unless within that time an

action to enforce the lien is commenced.

(7) A default in the payment of a civil fine or costs under

section 4q or an installment of the fine or costs may be collected

by a means authorized for the enforcement of a court judgment under

chapter 40 or 60 of the revised judicature act of 1961, 1961 PA

236, MCL 600.4001 to 600.4065, and MCL 600.6001 to 600.6098.